Adkins v. Loucks

Makshall, J. The attachment was properly discharged. The provisional remedy for the seizure of the defendant’s property prior to a judgment against him is confined to cases where the cause of action sought to be enforced is for a debt due from the defendant on contract. The cause of action here is for the recovery of a debt due from the-deceased, Phineas Loucks, primarily out of property which his heirs inherited. They are not liable in excess of such property, or liable at all upon contract. Moreover, this is an equitable action requiring an accounting, and an attachment is not allowable in such an action. Further, an order granting or refusing a provisional remedy must be reviewed1, if at all, on direct appeal from the order. It does not affect the merits of the action, nor the judgment, so as to render it reviewable under sec. 3070, Stats. 1898. While an attachment must have an action pending to support it, the two are distinct remedies, and if the former be vacated or otherwise disposed of before being involved in the final relief granted, the review on appeal must be confined to the-special right of appeal given by subd. 3, sec. 3069, Stats. 1898. Any other right of appeal in such circumstances is obviously valueless. If a writ of attachment is set aside, the attachment plaintiff, if he deem himself aggrieved, should proceed — 593 — promptly to appeal under sec. 3069, Stats. 1898, and take the proper proceedings tp continue the attachment in the meantime. Drake, Attachment, § 428a. The judgment in favor of respondent Pierce and that in favor of respondents Hurst and Jacguot are irregular and wholly unauthorized. Defendants in an action can have but one final judgment, though that may award them several relief against the plaintiff, or between themselves, with this exception: in an action incidentally involving an accounting or some particular issue of fact or condition requisite to a full determination of the rights of the parties, where there is a finding which, notwithstanding such circumstance, substantially disposes of the controversy between the parties, an interlocutory judgment may be rendered. Sec. 2883, Stat. 1898. The rendition of a judgment in advance of the final disposition of the case, as was done here, has been many times condemned. Sellers v. Union L. Co. 36 Wis. 398; Scott v. Reese, 38 Wis. 636; Gage v. Allen, 84 Wis. 323, 330. The Code only authorizes a judgment, finally disposing of the rights of all the parties, with the exception heretofore referred to. An action may properly be dismissed as to a defendant, but whatever relief he obtains in the nature of a finaljudgment must be embodied in the judgment rendered, which finally closes up the entire controversy presented to the court for adjudication by the pleadings/' By reference to the cases cited, it will be seen that the law has been settled so long; as indicated, that there is little need for any one to go astray. The judgment in favor of Pierce and that in favor of Hurst and Jacguot being out of the way, we reach the question of whether the demurrers were properly sustained. We are not definitely informed by anything in the record, or the briefs of counsel, or by anything said on the oral argument, what the grounds of the court’s decision were or the extent of it, whether it was grounded on the theory that — 594 — several causes of action are improperly united in the complaint or the theory that the complaint does not state a cause of action against either of the demurring defendants, or whether it was grounded on both theories. There is certainly but one cause of action stated in the complaint. The sole primary right presented for enforcement was that of the plaintiff, under sec. 3274, Stats. 1898, and subsequent sections, to the value of the real estate which came to the heirs of Phineas Loucks by inheritance, so far as necessary to satisfy his debt. The infallible test, by which to determine whether a complaint states more than one cause of action, is, Does it present more than one subject of action or primary right for adjudication? Gager v. Marsden, 101 Wis. 598. If it stand that test, no matter how many incidental matters may be connected with the primary right, rendering other parties than the main defendant proper or necessary to the litigation for a complete settlement of the controversy as to plaintiff, or for the due protection of their rights as against him or between themselves, there is yet but one cause of action, and a demurrer upon the ground of the improper joinder of causes of action will not lie. The sole subject of the action stated in the complaint being to recover plaintiff’s claim out of the land that descended to the Loucks heirs, the setting aside of fraudulent conveyances from such heirs or their grantees to others, which interfere with the accomplishment of that end, is germane to that subject, and, necessarily, the claimants of the property under such conveyances are proper if not necessarj" parties to the litigation. Without their presence before the court the final judgment would be valueless. Again, since it is the value of land that the action seeks to reach,.if Pierce, Hurst, and Jacquot conspired together with the Loucks heirs to prevent that being accomplished, and •either is in possession of any of the fruits of the fraud, he is as much a trustee thereof for the plaintiff as the holder of — 595 — the legal title to the land who participated in tbp fraud. So if the land cannot be reached, because it has passed into the hands of a Iona fide holder, but-the proceeds of the sale of the property are in the hands of a guilty participant in the fraud, a trust is impressed thereon for the benefit of plaintiff, and the enforcement thereof is germane to the primary purpose of the action. It follows that each of the defendants Pierce, Hurst, and Jacquot was properly brought into the case, and that the relief sought is germane to the main purpose of the litigation. It will be readily seen, not only that there is but one cause of action stated in the complaint, but that it reaches each of the demurring defendants. The Louoks heirs had no absolute right to sell their interest in the real estate as against plaintiff. They were privileged to free the property from plaintiff’s right to a specific lien thereon, by the alienation thereof in good faith prior to the filing in the proper ■office of the notice of the pendency of the action, and not otherwise. That is governed by sec. 3285, Stats. 1898, which reads as follows: “No real estate descended to any heir or devised to any devisee, which shall have been alienated in good faith and for value by him before a notice of the pend-ency of the action was filed or, if no such notice be filed, before the final judgment is docketed in the county, shall be liable to execution on any such judgment or any way affected thereby.” That is, prior to the filing of a notice of lis pendens, as indicated in the section, the Loucks heirs had the same right to part with their title to the real estate as their ancestor would have had if living. If they parted with such title under such circumstances as to taint the transaction with fraud and render it voidable on that account under sec. 2320, Stats. 1898, then their conveyance or conveyances were void at the election of plaintiff. But, necessarily, such • election could not be made effectual to avoid the transfers — 596 — without tbe fraudulent vendee or vendees being brought into the litigation. So the complaint is not only free from the infirmity charged, of improperly uniting two causes of' action, but the general demurrer thereto was not well taken. We now come to this question: “Did the effort of the Loucks heirs to divest themselves of title to the property accomplish their purpose? As to the adult heirs the answer-must be in the affirmative. The title passed to the grantee. Whether a voidable title passed or not depends upon whether the allegations in the supplemental complaint, to the effect, that the transfer was not made in good faith, are true. The mere fact that this action was pending when the transfers, were made is not sufficient to impeach the transaction for fraud. To accomplish that, it must be shown that there was an intent on the part of the vendors of the property, participated in by the vendees, to hinder, delay, or defraud the plaintiff. If the purpose was to turn the property into money- and remove it from the state, and thereby create such a condition as to prevent plaintiff from collecting his claim, then the transaction is evidently tainted with bad faith within the meaning of the statute. , As to the minor heirs, the question of whether their interest in the property passed to Jacquot by their guardian’s deed, depends upon whether a foreign guardian can pass the title to lands of his ward situated in this state without first obtaining authority so to do from the courts here. That must be answered in the negative. It seems that the learned circuit court decided to the contrary on the authority of the note to § 804 of Gary’s Probate Law (2d ed.). The text is as follows: “A domiciliary foreign guardian of a nonresident ward who has no guardian appointed in Wisconsin, upon filing his original appointment or a duly authenticated copy in any county court of Wisconsin, is invested with all the powers and rights in relation to the ward’s property in — 597 — "Wisconsin of a guardian duly appointed in the state,” citing sec. 4281, Stats. 1898. Such text states the power conferred by the section with substantial accuracy. The language is somewhat inaccurate in confining the section to “ domiciliary for- ' eign guardians.” No such idea is found in the section. It refers to foreign guardians generally, regardless of where domiciled. The note referred to is as follows: “This extraordinary statute gives the absolute control of a nonresident’s property in the state, without the supervisory control of any court of the state, to the guardian.” If that means that the section vests in the foreign guardian the right to sell his ward’s real estate without permission of or supervision by the state court, or otherwise dispose of the proceeds of a sale of such property, nothing could be further from the truth. The text writer, in preparing his note, may not have intended that such an interpretation should be put upon it as the one adopted by the circuit judge in this case, though it would easily bear such interpretation. Perhaps it should be stated stronger, like this, — ■ that the language will hardly bear any other interpretation. It is unfortunate that such an erroneous view of the statute (we cannot call it construction, because the statute is too plain to admit of interpretation or construction) should have found a place in a text-book so frequently resorted to as Gary’s Probate Law, especially by young practitioners. Sec. 4281 gives to foreign guardians, under the -conditions stated therein, the same power to sell the real property of their wards situated in this state as guardians appointed by the state court possess. The latter, merely under their general powers, cannot sell or convey their ward’s real estate. They can only do so by procuring special authority for that purpose from the court, as provided in ch. 151, Stats. 1898. No such authority was obtained by the guardian of the minor defendants, hence his attempt to dispose of their property did not affect the title — 598 — thereto. It remained in such minors after such attempt the same as before. The court decided as a matter of law that appellant’s claim was barred by laches. We cannot discover any finding of fact to support that view. There is no finding of fact touching the subject of laches. There is a finding that plaintiff’s cause of action was more than six years old before this action was commenced, but that was made, obviously, because of the plea of the statute of limitations. It does not touch the subject of limitation by mere laches in the absence of a finding, and evidence to support it, that the appellant had knowledge of his rights, or reasonable means of knowing thereof, and that in such situation he unnecessarily delayed the enforcement of his claim against the property of the Loucks heirs, to their prejudice. There is no reason for saying that he was barred by laches. The evidence shows that up to the time this action was commenced, it was not known, except by circumstances, that Phineas Loucks was dead. He disappeared in 1891, since which time no one had seen or heard from him. Appellant resided at a great distance from where Phineas Loucks resided and where he disappeared. 'He commenced this action very soon after the death of Loucks could be established by the legal presumption arising from the circumstance of his disappearance and that no one had seen or heard from him. Before such an important conclusion of law should have been made as that the plaintiff was barred by laches from the prosecution of his claim, some finding of fact should have been made to base it on. It seems that the conclusion is clearly erroneous. The plea of the statute of limitations upon the enforcement by action of a liability created by law, cannot avail the defendants, because the heirs were out of the state when the plaintiff’s cause of action arose, and so continued. That — 599 — prevented, tbe limitation statute from running in their favor. Sec. 4231, Stats. 1898. As to participation by purchaser in fraud of vendor which will invalidate transfer for good consideration as against vendor’s creditors, see note to Kansas M. P. Oo. v. Sherman (3 Okla. 204), in 32 L. R. A. 33.— Rep. By the Gourt.— The judgments are reversed, and the cause remanded for a new trial. Cassoday, C: J., took no part.